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Stalking – How Are the Terms of the Crime Defined?
The crime of stalking conjures up images of an emotionally obsessed and violent person, who made threats to “avenge” being humiliated, sitting in a parked car outside a former romantic interest’s home, patiently waiting to embarrass that person in some way in revenge for being spurned at some point. It could also be a former employee, fired by his or her boss, driving back and forth the boss’ home and communicating a threat to seriously harm the boss for ruining a career.
Brief Synopsis: Stalking is crime with terms that should be carefully understood and, if one is a defense attorney, compared to the client’s conduct y case the conduct does not fit the legal definition.
California Penal Code § 646.9(a) sets for the elements of the crime of stalking as:
- A person willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person; and
- That person makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.
The term “harasses” within the context of 646.9 means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no logical purpose. Penal Code § 646.9(e).
It is not necessary to prove that defendant actually intended to carry out the threat. Penal Code § 646.9(g). It is sufficient, for purposes of proving criminal stalking in California, to show that the threat causes the victim to reasonably fear for his or her safety, or the safety of his or her immediate family, and that the accused made the threat with the intent to cause the victim to feel that fear. People v. Falck (1997) 52 Cal. App. 4th 287, 297-299, 60 Cal. Rptr. 2d 624.
Torrance CourthouseThe qualification at the end stating “that serves no logical purpose” addresses how persistent bill collectors or even advertisers could be mischaracterized as stalkers, but are not because collecting a debt owed is a lawful purpose and advertising can be a lawful purpose insofar as one has a right to pursue employment.
“Course of conduct” is important to understand. It means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.” Penal Code § 646.9(f).
‘Immediate family,” within the context of stalking, is a bit broader than one may think. It means any spouse, parent, child, or any person related by consanguinity (blood) or affinity within the second degree (children). Also included in the definition of “immediate family” is any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. Penal Code § 646.9(l).
“Credible threat” is the most often contested issue. For purposes of stalking, a credible threat is: 1) a verbal or written threat, including one made by using an electronic communication device (a cell phone or computer), or a threat implied by a pattern of conduct, or a combination of written, verbal or electronically communicated statements and conduct; 2) made with the intent to place the person who is the target of the threat in reasonable fear for his or her safety or for the safety of his or her family; 3) and made with the apparent ability to carry out the threat; 4) so as to cause the person who is the target of the threat to reasonably fear for his or her safety or for the safety of his or her family.
To determine whether a threat in fact occurred, a court (judge or jury) must consider the entire factual context, including surrounding events and the reaction of the “target” as well as others who may hear or read the threat. People v. Uecker (2009) 172 Cal. App.4th 583, 598, n10, 91 Cal. Rptr. 3d 355. For example, evidence of defendant’s past domestic violence toward the victim is relevant to show intent to place the victim or family members in fear for their safety and to show the victim’s state of mind. People v. McCray (1997) 58 Cal. App. 4th 159, 171-173, 67 Cal. Rptr. 2d 872.
Lastly, we think most interestingly, a court has found that although the victim certainly must be aware of the stalker’s conduct (and then fearful of the suspect), that awareness need not be contemporaneous with the course of conduct constituting the stalking. People v. Norman (1999) 75 Cal. App. 4th 1234, 1239, 1241, 89 Cal. Rptr. 2d 806 (although victim was absent from country at time of conduct constituting stalking, evidence supported conviction for stalking, when victim became aware of conduct afterwards, and testified at trial that he was still afraid of defendant and believed he was the object of a “mission” that defendant was capable of carrying out).
For more information about stalking, please click on the following articles:
